DOCTRINE OF ESTATES

Origin of the Doctrine of Estates: Development of the lawAt common law, land could not be owned absolutely. On could only have tenure in

land or a tenancy of lands. This means land was held in return for a promise to perform certain services.

The period within which the land could be so held was called an estate. The estate is ownership qualified in terms of time; the time within which the land can be possessed, enjoyed. Controlled or managed and alienated. It describes the duration of a grant from a superior lord within the feudal society.

The period of time within which one can hold land varies. The grant can range from: (1) [for] the life of the tenant and any of his heirs, both collateral and lineal; so long as any of his descendants or collateral heirs is alive; the estate endures [fee simple]. (2) [For] the life of the tenant and his descendants only; whereby the class of potential heirs is restricted to the direct descendants of the tenant [fee tail]. (3) [For] the life of the tenant, whereby upon his death the estate determines. [Life estate].

1. The Fee Simple EstateThis is the most precise and permanent form of ownership, the word “fee” indicating that the holder can dispose of his interest by sale or otherwise, conferring on his successor similar rights as those previously held by him, subject to only such encumbrances which run with the land, such as easements and restrictive covenants. [If the land is described as fee, it means it is inheritable].

The fee simple is the largest estate recognized by the common law. It is potentially of an infinite duration. It can be inherited, disposed of inter vivos or by will; the tenant of a fee simple estate has the right to use and abuse, i.e. subject to the general law, he can put it to any use he desires.

CHARACTERISTICSA. InheritanceThe fee simple can be enjoyed through successive inheritance by successive

generations. The prefix “fee” denotes an estate that is inheritable; and the suffix “simple” shows its quality of general transmissibility i.e. the incident of transmissibility is not in any way restricted to heirs of a particular line of descent. The class of potential heirs is extensive and unlimited. Collateral heirs are eligible to succeed if there is no more existing in the line of lineal heirs. Therefore, this right of inheritance extends to ascendants and descendants i.e. all collaterals.

If there is a case where the tenant in fee and all his heirs die, and he as such dies without leaving any lineal or collateral heir, the duration of a fee simple estate is determinate in that sense.

The distinguishing feature of this type of estate is that it is uncertain to determine at any specific time in the future or on the occurrence of some event which is certain to occur on a predetermined date.

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The words used to connote a fee simple estate are “to T and his heirs”. This is suggestive of the fact that after the death of the tenant the estate should go to his heir, who could recover the estate from any person the deceased ancestor had conveyed it. To forestall this possibility, it was necessary for any alienation to be effected with the concurrence of as many near relatives as the grantor could lay his hands on. However, after 1306, the tenant could defeat the interest of his heirs by conveying his property to a third person without concurrence of his relations. The heirs cease to have the right to interfere with a disposition made by their ancestor to a third party, whose interest was no longer dependent on the existence of the heirs of the original grantor.

B. Right of Alienation- inter vivos

The heir’s right to inherit ceased to give him any definite or cognizable interest in the property as soon as the land became devisable or alienable inter vivos without the concurrence of the relations of the tenant. The concept “and his heirs” therefore became artificial; for the property could be given away so as to defeat all the expectations of the “heirs”, who would then have no claim whatsoever to the property if it had been granted out of the lineage.

C. Right of Alienation-testamentary

Between the 13th and the 15th centuries, it was impossible for a tenant to dispose of his estate by will. However, the tenant could circumvent the common law prohibition against testamentary disposition of land by means of a “use”, by transferring the estate to a trustee upon a trust for himself, reserving the right as to how the trustee should ultimately dispose of the estate after his death. In his will he would indicate how the trustee should dispose of the property. The trustee would then carry out the instructions inter vivos. In 1540, the Statue of Wills made real estate devisable.

D. Right of Use and Abuse

Austin classified ownership as the right of: [1] indefinite user; [2] unrestricted disposition; and, [3] enjoyment unlimited in duration. These three rights mean: [1] the right to make physical use of a thing; [2] the right to the income from it, in money, in kind or in services; and [3] the proper management, including that of alienation.

A tenant in fee simple can therefore put his land to any use he thinks fit. He can use it and abuse it, and he does not normally incur any liability for neglecting it.

There are however some exceptions to be noted:

Exceptions

[1] He has to respect the right of others, which affect his land, such as leases, easements and mortgages.

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[2] Statute may restrict the tenant’s right of user in several ways. Modern social life has necessitated the enactment of Town and Country Planning, Health and Compulsory Acquisition laws which interfere with the used of land. However these do not affect the inherent nature of a fee simple estate.

Compulsory Acquisition

The constitutions of the Commonwealth Caribbean territories all enshrine the citizens’ right to own property. This right is usually states in the context of the citizen’s protection against governments’ compulsory acquisition without adequate compensation. It can therefore be seen as a protection against expropriation. This right, however, is subject to a number of exceptions, all of which point to the supremacy of the national interest and public policy.

Section 18 (1) of the Jamaican Constitution provides, inter alia as follows:“No property of any description shall be compulsorily taken possession of and no interest in or right over property shall be compulsorily acquired except by or under the provisions of a law: that--Prescribes the principles on which and the manner in which compensation therefore is to be determined and given; and-Secures to any person claiming an interest in or rights over such property a right if access to a court for the purpose of-(i) Establishing such interest(ii) Determining the amount of such compensation [if any] to which he is entitled; and(iii) Enforcing his right to any such compensation.”Section 19 (1) protects one against unlawful search or entry upon one’s property. It provides inter alia as follows:“Except with his consent, no person shall be subject to the search of his person or property or entry by others on his premises.”[3] The tenant may incur tortuous liability if, by the use of his land, third parties

suffer any injury. Nuisance and liability under the rule in Rylands v. Fletcher are the commonest examples.

Types of Fee Simple Estate

1. Determinable Fee SimpleThis is an estate which determines where the tenant and his heirs die, or the

occurrence of a specified event other than death. Thus a grant limited in fee simple “so long as the premises are used for the purposes of cricket matches” confers a determinable fee, in that, the estate may endure forever. It does not qualify as an absolute fee simple since if it ceases to be used for cricket matches, which is possible, but not certain to occur, the estate will revert to the grantor or his estate.In the case of a determinable fee, there are two limiting events:

[1] Failure of life; and, [2] An event other than the failure of life.

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However, in the case of a fee simple absolute there is only one limiting event- the failure of the lives of the tenant and his heirs.

The estate is subject to an executory limitation over when there is a grant of a remainder in fee after the determination of the prior fee simple estate. The estate then passed to the person entitled to the executory limitation over, but no to the grantor.

This situation is illustrated by the example: Blackwood’s Country Manor to my son in fee simple, but if my daughter, Christine, gets an A average at ‘A’ levels, to my daughter, Christine and her heirs.

It is worthy to not that the limiting event is not bound to occur; the fact of uncertainty gives the estate the quality of a fee hold estate. For the estate may endure forever.

In a determinable fee there is a collateral limitation which is interwoven into the duration of the estate in such a way that it can operate to bring the estate to an end earlier than the time ultimately envisaged. It is an uncertain event which sets another boundary for the fee simple estate. Words such as until, so long as, whilst, during, normally gives rise to an inference that a determinable fee is intended.

On the occurrence of the specified event and in the absence of an executory gift over, the estate reverts to the grantor. The grantor therefore retains some interest in the land given for a determinable fee simple- this interest is referred to as a possibility of reverter.

2. A Fee Simple upon Condition Subsequent

This estate arises where by the conveyance a condition is attached to the grant of a fee simple estate which will be defeated if the condition is breached. Words such as “on condition that”, “provided that”, “if”, “but if it happens that” gives an indication that a fee simple upon condition is intended.

On the occurrence of a condition attached to a conditional fee simple, the grantor has a right to re-enter and effectively determine the estate. It is possible but not certain that the condition will be satisfied, rendering the estate forfeitable.

Distinction between Determinable and Conditional Fees

The distinction between the two appears very tenuous: The distinction turns more on words than on substance, i.e. the intention of the

parties.

Essence of Distinction:

1.Automatic reverter/ affirmative action to divest- on the occurrence of a determining event a determinable fee terminates, ipso facto, and reverts automatically to the grantor or his successor. However, in the case of a fee upon condition subsequent, the grantor must

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take some affirmative action to terminate the grant and divest the grantee of the estate. In a determinable fee, the estate runs its full course and determines automatically on the occurrence of the specified event. There is therefore no estate to forfeit on the occurrence of the event.

2. Waiver/ Estoppel- Since in the case of a conditional fee the grantor has to institute positive steps to terminate the estate, the grantee can plea the defences of waiver and estoppel; these defences are unavailing in the case of a determinable fee.

3. In the case of a determinable fee, the limiting event is an integral part of the formulation of the duration of the estate. Consequently, if the limiting event of a determinable fee turns out to be contrary to public policy, it vitiates the whole contract, which is thereby rendered void altogether. However, in the case of a fee upon condition, the limiting event is a superadded condition and is not an integral part if the very limitation of the estate. Therefore, if the limiting event of a fee upon condition is vitiated on grounds of public policy, the grant is not destroyed in its entirety; only the condition is cancelled; the grant therefore subsists as a fee simple absolute, as if the grant were made without any condition attached.

4. Strict Construction- the courts lean very heavily against forfeiture. The courts require that the limiting event in a fee simple upon condition be precisely and distinctly specified.

Void Conditions

(1) Restraints on Alienation

It is the inherent quality of an estate that it is freely alienable. Any condition which totally restrict the power of a grantee of an estate to dispose of it would be incompatible with his right of ownership and would be considered void.

If the condition does not render the estate totally inalienable, but imposes merely a partial restraint on alienation, there is authority for upholding it.

In Re Macleay (1875) L.R. 20 Eq. 186 A grant subject to the “condition that [the grantee] never sells it out of the family” was upheld, since it did not substantially deprive the grantee of the power of alienating the property in any other way than selling; he was free to sell to members of the family, and the restraint did not affect the subsequent owners.

(2) Public Policy

A condition which is contrary to public policy will be struck down by the courts. Where a condition is found to be illegal or immoral, it may fail on grounds of public policy. A condition in restraint of marriage attached to a gift of an estate with the object of providing for the grantee whilst unmarried or separated or divorced is valid.

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In Jones v. Jones (1876) 1 QBD 279 the property was devised to three women “provided the said Mary…shall remain in her present state of a single woman, otherwise…if she shall bind herself in wedlock, she is liable to lose her share of the said property immediately, and her share to be possessed and enjoyed by the other mentioned parties, share and share alike”.

The court upheld the condition as valid. It was evident that the settler wanted to make provisions for the grantee of his largesse whilst she was unmarried and not to induce her into celibacy.

2. The Fee Tail

This is an estate in land whereby the grant is restricted to the grantee and his heirs only.

Inheritance restricted to lineal heirs

Only the class of heirs above stated have the right of inheritance in respect of the fee tail. The class of heirs is therefore taille or talliatum.[restricted to lineal heirs]. The estate comes to an end if the lineal descendants run out. This is unlike a fee simple, which can be succeeded to by heirs collateral if there are no lineal heirs.

Thus a fee tail, unlike its fee simple counterpart is a limited estate in which an interest subsists in favour of the grantor in the form of reversion or for a third party in the form of remainder.

Fee tail is therefore lesser in duration than a fee simple estate. For it lasts for the life of the grantee and only his lineal descendants on failure of whom the estate comes to an end and reverts to the grantor or the tenant to whom the grantor has given the reversion by way of remainder.

Powers of Inter Vivos Disposition

The powers of alienation of a fee tail tenant are limited. Unlike a tenant in fee simple, an entailed tenant cannot prejudice the right of inheritance of his descendants by disposing of the estate. Since the estate is for the tenant and heirs of his body, the tenant cannot give title which is not subject to the interest of his heirs. The result is that an alienation by a tenant in fee tail can pass only a life estate for his own life, i.e. the life of his grantor/ tenant in fee tail will then be considered as the measuring life. On the death of the tenant in fee tail the state he gave to the grantee will determine and the heir of the tenant in fee will recover the estate from the grantee.

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Barring the entail

There was a common law principle that a judgment affecting land was not only conclusive of the rights between the parties to the suit, but also barred t the claims of all persons who derived their title from the parties. This principle was manipulated by lawyers to the advantage of tenants in possession of an entailed estate. It was generally accepted that a judgment obtained against a tenant in tail would bind his heirs. So a tenant in tail who desired to dispose of his estate in fee simple could do so by simple submitting to judgment in an action instituted by a friend for the recovery of the estate.

Where such a judgment was obtained in a collusive action, the interests of all persons claiming through the tenant in tail were barred. Such a judgment obtained in a collusive action could be set aside by the heir after the death of the ancestor.

Warranty

“Vouched to warranty” was the process by which the interests of remaindermen and reversioners could also be barred. For this process a stranger or a fictitious person brought an action against the tenant in tail. The tenant in tail would then “vouch to warranty” some third person, who was presumed to be the original grantor of the land. The action would then be defended by the person who was alleged to have given a warranty that if the title given to the tenant in tail turned out to be bad, he, the tenant in tail’s grantor would recompense the tenant in tail in equal value of the land. The third person, the tenant in tail’s original grantor, admitted in the proceedings that the title he gave the tenant in tail was bad. Consequently, he had to give the tenant a new land of equal value. A judgement to the effect was given against him. The interests of the reversioners and remaindermen were thus deflected from the land of the tenant in tail into new land to be given by the stranger. By this means the stranger became seised of the land in fee simple, which he would then be competent to dispose of in any way directed by the tenant in tail.

Fines

A fine was a settlement arrived at with the approval of the court by parties to a fictitious suit, one of whom was acknowledged under the terms of the compromised agreement as the rightful owner of the land, the subject matter of the fictitious action. The fine was then enrolled in the court’s records. This put an end to all claims to the land. Parties whose interests in land had not vested in possession could have their rights to the land barred.

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3. The Life Estate

As the term suggests, the holder [referred to as the “life tenant” or “tenant for life” is granted an interest for the duration of his life. It is a form often used by spouses or family members generally. There are two types of life estate at common law:

a) Estate for the life of the grantee: usually expressed thus: “To X for life and thereafter to Y and Z”. The estate comes to an end at the death of the grantee- the grantee’s own life is the measuring life. There is therefore no right of inheritance, for he enjoys the property for the duration of his life and no longer; and’

b) Estates pur autre vie: usually expressed thus: “To X during the life of Y and thereafter to Z”. The estate is granted to be held by a tenant during the lifetime of another person. The measuring life, described as cestui que vie, is that of a person other than the grantee. On the death of Y the estate comes to an end. This can also arise where Y, an owner of the life estate, makes a grant to Z. Since Y cannot give an estate larger than he has, Z will get an estate which he will enjoy during the life of Y.

Example- (a) is referred to as a determinable estate, which (b) is referred to as a conditional estate.Upon X’s death the property passes to Y and Z ([referred to as remaindermen] who will own the fee simple. The life tenant as X is known, can enjoy property fully, benefiting from the rents and profits and might even sell the property, at which point the proceeds of the sale are to be held on trust for Y and Z, X benefiting from the interest until his death.

InheritanceA life estate is not an inheritable estate. A’s grant to “T for life” determines on the death of T, and the heirs of T does not have any claim to succeed to it. The grantor or settler is equally not competent to reclaim the estate so long as the person whose life is used to measure the duration of the estate is alive. The estate has not yet come to an end. The common law developed special rules to govern succession in such situations

1. General Occupancy: these rules are applied where the estate is not conferred on the tenant and his heirs, e.g., in a grant “to t for the life of c”, if T predeceases C, since T’s heirs are not mentioned in the grant they will have no claim to the property.The common law improvised a rule to the effect that the first person to enter on the land can retain possession and enjoy the property so long as the cestui que vie lives. Such a person then acquires the seisin and he is describes as a general occupant.

2. Special Occupancy: This arises where the estate is conveyed or devised “to T and his heirs for the life of C”. If C survives T the estate continues since. Since the heir is mentioned in the grant, on the death of the ancestor, the heir takes the property.The general rules of occupancy were abolished by the Statute of Frauds, 1677 (UK). By this statute a tenant pur autre vie was allowed to devise his estate. Where a tenant pur autre vie dies intestate and there is no special occupant, the estate subsisting during the life of the cestui que vie is taken by the personal representative.

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Rights of Use and Abuse- the doctrine of waste

A tenant for life has a relatively restricted right of user. He has the right to take reasonable estovers from the estate. Estovers are trees, timbers or wood felled for fuel, or used for the purpose of building or repairing fences, agricultural erections and implements for the purpose of effecting necessary repairs and improvements to the house. He has the right to cut only such timber and wood as is reasonably necessary for his immediate needs and such wood or timber felled by him should be used on the estate. He cannot keep it in anticipation, i.e. for his future fuel needs or for future repairs or building. He cannot even sell it with a view to using the proceeds for repairs or building.

Where the tenant for life is granted a timber estate, he has a right to cut and sell the timber in consonance with rules of good husbandry. Timber estates are estates which are cultivated merely for the produced of saleable timber, and where timber is cut periodically.

The right to cut and sell timber on an estate which was cultivated as a timber estate at the time of the grant is based on the life tenant’s right to the income of the estate.

These rights of user are subject to any contrary agreement or covenant in the deed of settlement.

A tenant for life has the right to work mines which have already been opened by the grantor.

Limited Right of abuse- wasteCommon Law Restrictions Embodied in the Doctrine of Waste

The doctrine of waste is applicable to:1. a tenant for life 2. A leaseholder

A tenant for life is generally not permitted to commit waste, and he can be restrained or be liable in damages for waste.

Waste refers to any action which alters the character of the holding or prejudices the interest of the remainderman. An act can be waste if it is injurious to the heritance by (a) diminishing the value of ht estate, or (b) increasing the burden on it, or (c) impairing the evidence of title. It imposes a burden on the estate if the cost of maintaining it is increased by the improvements added by the party guilty of waste. The object of this doctrine of waste is obviously to preserve the property for the benefit of the reversioner or remainderman.

Any act which causes permanent injury to or changes the identity of the future estate or subjects the reversioner or remainderman to additional responsibility is considered as a

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waste. The reversioner or remainderman is entitled to object to any such improvement and should be able to insist that the estate should revert to him or his assigns at the termination of the life estate in the same condition as it was granted; even if the intended change will increase the value if the estate.

There are four [4] types:1. Ameliorating Waste: this refers to alterations to the property for the purposes of

improvement. It is only in exceptional circumstances that the remaindermen would succeed in an action to restrain the tenant for life such as where for example, a farm is being converted into a market garden as in Meux v. Cobley (1892) 2 Ch. 253 where the lessee (Cobley, the defendant) leased a farm from the lessor (Meux, the plaintiff). He covenanted to “in all respects cultivate and manage the farm, and in every part thereof in a good, proper and husband like manner, according to the best rules of husbandry practiced in the neighbourhood.’ The lessee began converting the farm into a market garden by constructing glass houses. The lessor tried to obtain an injunction on the ground that the conversion was a waste.

Held: that the conversion into a market garden did not constitute a breach of covenant and that there had been no injury to the property and therefore no waste, or where a holiday camp is to be constructed on a wild stretch of coast. In cases of ameliorating waste, the courts will examine whether a monetary compensation, rather than an injunction will suffice.

2. Permissive Waste: this occurs when the property is allowed to fall into disrepair due to neglect or failure or omission to do what will prevent damage to the inheritance, for example, by the life tenant’s failing to maintain a house, fences or clean a moat.

A tenant is liable for permissive waste only where he is positively enjoined by a covenant or agreement to perform those acts which would prevent the injury complained of.

3. Voluntary Waste: This occurs where the life tenant alters the land to its detriment; e.g. felling of specially protected trees and the opening and exploitation of a mine or quarry. It falls short of equitable waste; i.e. acts of wanton destruction.

4. Equitable Waste: this refers to acts of wanton destruction such as the stripping of lead from a roof, the destruction of ornamental trees along a driveway, the pulling down of a house, the cutting down of trees which were intended to provide shelter.An injunction will lie to restrain such acts of wanton destruction even if the tenant is unimpeachable of waste. Acts of wanton destruction will arise where the acts complained of are such that a prudent man would not do in the management of his property.

The object of equity’s intervention is to prevent the abuse “without impeachment of waste” dispensation by a tenant for life. Where adequate words are used to exempt

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the tenant for life from equitable waste, he cannot be liable for acts of wanton destruction.

Waste and the Tenant for Life

The tenant for life is liable for voluntary, permissive and equitable waste unless the instrument creating the tenancy excludes his liability.

He is not generally liable for ameliorating waste. An injunction will not be normally granted against his commission of this form of waste as it improves the property.

With respect to the cutting of timber and exploration of minerals, the law is that the cutting of timber must be reasonable and consistent with the normal user of the land. Wanton cutting of trees is therefore not permissible, neither is it permissible to cut fruit trees or trees not designated as timber e.g. ornamental trees.

Voluntary waste, for which the tenant for life may be liable, occurs where a previously unopened mine is opened and worked.

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